Difficult AOS interview at Garden City, NY

S

smali

Registered Users (C)
Hi All:

OK I am back after a recess of approximately 6 months. i.e. since I received my natz in Oct 09. So, I filed I-130 and I-485 for my wife in 10/09 and were interviewed about two days ago. The IO was a lady about 58 yr old. Very stern looking and no sense of humour at all. We had our 1 1/2 yr old son with us, which she was not comfortable having him there. But to that end, she was not comfortable us being there too for the interview.

She took the oath and staring asking me questions about my previous marriage to a USC and AOS in 2002. I told here how I met that woman and how were we married in 2001 and why i filed and obtained divorce in 2004. She tried to state that "How convenient it is for you to obtain GC by marriage and now confer to another person" or something to that extent and she needs to examine this case carefully that this is not "fraud". Yes, she uttered that dreaded word, which was shocking to me. I stated I did do every thing according to law and nothing illegal here.

Comments Please

Next she proceeded to ask me for my original Natz Certificate. I stated that I have included a copy in my file but I have my US passport here as proof of Citizenship. She took the passport, looked at it for a moment and stated, nope, she needs original natz cert as "This passport is issued by State Department and ntaz cert was issued by us". Any way she took the copy of natz cert to her records.

Than she asked what other evidence I have for living together with my current spouse. I gave her copy of apartment lease, she wanted the original, I stated I did not bring original, she took it any ways, than we handed her the copy and originals of our driving licenses listing same address, than I gave her original or one verizon and one Con Ed bills listing both our names and at the end gave her original of bank letter stating amount and date in our joint account. She asked us if we have original birth cert of our child born in US, which I did provide original and copy.

At the end she again started this tirade that I should have brought my original natz cert and I should have been paying more attention to notice of interview I had received and blah blah. I said that its not mandatory that I should have brought natz cert but passport is also a proof of citizenship.

She stated that your file is quite extensive and she needs time to review it and look at my "A" file and see every thing is in order and than she will make her decision and inform us by mail.

Now my wife had received EAD and AP. We did visit Canada in Nov 09 on AP. I did see that she did had a copy of stamped AP from the border in front of her. She unstapled the I-94 than gave it back to my wife and she did not collect AP original or the EAD? Were they suppose to collect if they intended to approve the AOS? My wife originally came on F-1 visa and has maintained her lawful status in the past 3 years.

So, on the basis of above facts, what shall I expect:

1. I was awarded naturalization after filing my own I-751 waiver and filing a writ of mandamus in Fed Court.

2. I was told by my attorney that now they can not revoke my citizenship.

3. I was also informed by an attorney ( I did not have an attorney at interview) that once you have common children, the suspicion goes away to most part.

4. I read in the immigration law that "presumption" of fraud to a subsequent marriage based AOS goes away altogether once the petitioner obtains "citizenship' or 5 years are past. In my case both are true.

So, why did she kept that demeanor and what are our chances for NOID or denial?

If I wait for 120 days and do not get an answer after making info pass, do you recommend filing a mandamus again to have the AOS adjudicated or shall I wait longer like 6 months.

(Please substitute "I" and me with "we" or "her", as appropriate, as I am authorized to speak for her):eek:
 
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The classic fraud marriage scenario is one where the individual marries a USC, gets a green card, gets citizenship and a divorce (in either order), then gets married again to the noncitizen they really wanted to marry in the first place, and sponsors their new spouse. So the second marriage is the real one, and the first was only to obtain the GC.

You were given a hard time because your situation resembles the classic fraud marriage situation. If there is evidence that you had a relationship with your current spouse prior to obtaining the GC with your first spouse, that magnifies the appearance of fraud.
2. I was told by my attorney that now they can not revoke my citizenship.
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You're not automatically immune from revocation. It is very difficult to do so, but it's not impossible. They can revoke your citizenship if your first marriage was a sham marriage.
4. I read in the immigration law that "perception" of fraud to a subsequent marriage based AOS goes away altogether once the petitioner obtains "citizenship' or 5 years are past. In my case both are true.
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You must mean the presumption of fraud. Obtaining citizenship is not enough to remove the presumption. There is a 5 year rule, as stated on the I-130 instructions.

Now the perception, which is a subjective thing, may still be there more than 5 years later. In cases like yours, the suspicion is on the first marriage, not the second one.
 
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what does law says

i know that presumption may go away after 5 years, so it is similar to statute of limitations. congress must not have meant that a person obtaining green card through marriage must not and should not marry some one which may be more compatible even after 5 years have past. congress must have been very clear about this in immigration marriage fraud act or other laws enacted. so, by law, they can not deny our aos, although i know it is a discretionary decision, but discretion based on facts not some witch hunt.
 
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It is 1447(b) that you would file if they don't decide the case within 120 days after the interview said:
it is aos case not n-400 case. there will be no oath but an approval or denial notice on aos, and it is mandamus action, not 1447b. 120 days may be for n-400, what is for aos?
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You're right, it would be Mandamus, not 1447(b). I got that mixed up for a moment ... I probably shouldn't be responding to posts at 3 am!

But you'll have to wait much longer than 120 days for Mandamus. I don't know of any successful Mandamus cases where the AOS was pending for less than a year.
 
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smali said:
i know that presumption may go away after 5 years, so it is similar to statute of limitations. congress must not have meant that a person obtaining green card through marriage must not and should not marry some one which may be more compatible even after 5 years have past. congress must have been very clear about this in immigration marriage fraud act or other laws enacted. so, by law, they can not deny our aos, although i know it is a discretionary decision, but discretion based on facts not some witch hunt.
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5 years passing doesn't mean you're automatically free and clear. There is no statute of limitations for immigration fraud. It's just that they'll now have to find solid evidence of the fraud, and cannot just rely on the presumption.

Now they are probably going to search through your A-file and your spouse's A-file and any other databases they have to look for evidence of you having a relationship with your current spouse before you got your GC. I presume you did not meet your spouse until after getting your GC, so they should not be able to find such evidence, and your spouse's GC will be granted. But it may take a long time.
 
The officer is highly suspicious of your first marriage. Out of sheer curiosity, were there significant differences of ethnicity/religion between you and your first spouse? What about any such differences with your current spouse?


smali said:
So, why did she kept that demeanor and what are our chances for NOID or denial?
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Triple Citizen said:
The officer is highly suspicious of your first marriage. Out of sheer curiosity, were there significant differences of ethnicity/religion between you and your first spouse? What about any such differences with your current spouse?
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Jack and Mr. Ghotri:

I gather that she was suspicious of my first marriage and its not the first time. It has been done with before and CIS was proven wrong before an IJ and I-751 waiver department.

Now, that should have been knwon to officer before she started taking interview. She was not prepared and she took the stance that I needed to convince her ab initio. That is what I am furious about. I paid $1010 and they still did not do their job properly. We need a comprehensive immigration reform now, wher may be half of the dead wood from CIS office will be shown the door. I hope, if Obama is right in his words. Just a slight political statement here, but it is perfectly applicable here.
 
smali said:
I paid $1010 and they still did not do their job properly. We need a comprehensive immigration reform now
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Well, money paid doesn't always correlate with the service that you get.

And comprehensive immigration reform will not solve some of the issues that you faced. While I do think that the IO was within his rights to evaluate your case, I do agree there are incompetent IO's who create unnecessary hassles. But, you will see incompetence in any organizational environment, whether govt or private.

Oh, and any granted immigration benefit (GC, citizenship, etc.) can be revoked at any point of time, if there is evidence to prove fraud. There is nothing stopping USCIS from doing it.
 
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answer to questions

there is no ethnic issues related to marriage but the general ethnic background of applicant may be a sticking point, as you are aware certain nationalities are under scrutiny.

one thing to clarify is that congress has specifically stated that cis can grant the benefit of LPR or citizenship, but only judicial branch can take it away. So, i was in my right to state that cis can not take away citizenship. the burden of proof in judicial proceeding is on govt. and is often insurmountable in cases where there is nothing to prove to begin with and no shred of hard evidence can be collected.
 
smali said:
I gather that she was suspicious of my first marriage and its not the first time. It has been done with before and CIS was proven wrong before an IJ and I-751 waiver department.
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A successful ruling at that stage doesn't mean you're free and clear. They can still revoke your GC or citizenship on the basis of evidence that is discovered afterwards. Such new evidence could include the sponsoring of a 2nd spouse whom you had a relationship with before obtaining your GC via your first spouse.
 
define relationship

well i did not had any relationship to my second spouse when i married my first wife. rather i did not know this family until after two years of my divorce. does that make me free and clear
 
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Jackolantern said:
5 years passing doesn't mean you're automatically free and clear. There is no statute of limitations for immigration fraud. It's just that they'll now have to find solid evidence of the fraud, and cannot just rely on the presumption.

Now they are probably going to search through your A-file and your spouse's A-file and any other databases they have to look for evidence of you having a relationship with your current spouse before you got your GC. I presume you did not meet your spouse until after getting your GC, so they should not be able to find such evidence, and your spouse's GC will be granted. But it may take a long time.
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there is a statute of limitation on any type of fraud. the appeal court held back im 1996 that removal can not be initiated after 5 years were past that ins knew of sham marriage and did not take any action for more than five years after they came to know about it. so, i gather that there must be a some type of statute of limitation. please google that case as follows.

In Bamidele v. INS, 99 F.3d 557 (3d Cir.
1996), we nullified rescission as well as deportation proceedings commenced after the
five-year limitation period in section 246 had expired because the INS had prior
knowledge of the facts at issue in both the rescission and deportation.


here is another recent case


ALIEN CAN'T BE DEPORTED AFTER 5 YEARS FROM FRAUDULENT ADJUSTMENT
By REUBEN S. SEGURITAN

November 12, 2008
The U.S. Court of Appeals for the Third Circuit ruled on October 28, 2008 that an alien who was erroneously granted adjustment of status cannot be deported because the government took more than five years to start deportation proceedings against her.

The court noted that the five-year statute of limitations on rescission as provided for under the Immigration and Nationality Act was also applicable to removal proceedings even after the specific provision of that law was subsequently amended.

In this case the alien, Rosalba Garcia, filed an adjustment of status application in 1996 claiming that she was the unmarried child of a U.S. citizen. Garcia knew that the petitioner was not her biological or legal mother but she filed her application anyway.

In September 1996 the then Immigration and Naturalization Service (INS) approved the application and granted her a green card.

It turned out that her mother had previously filed multiple I-130 relative petitions but were either rejected or denied as she was unable to prove that Garcia was her child.

She had filed one in September 1993 which was approved in January 1994 but rescinded in August 1995. An earlier application was also rescinded in 1988. Another petition was filed in 1995 but was denied in September 1996.

The Department of Homeland Security (DHS) which took over the functions of the INS did not realize its mistake until 2004 when Garcia applied to become a U.S. citizen. It started removal proceedings in 2005 alleging that Garcia was ineligible for adjustment of status in 1996 because of her misrepresentation.

An immigration judge ordered her removed from the U.S. and the Board of Immigration Appeals (BIA) affirmed the judge’s order. Garcia petitioned the Court of Appeals to review the BIA decision.

In her petition, Garcia argued that the DHS was barred from initiating removal proceedings based on the fraudulent application because five years had already elapsed since her adjustment.

She cited the case of Bamidele in support of her petition for review. Bamidele had obtained an adjustment of status through a sham marriage but the same Court of Appeals vacated the deportation order because the DHS waited five years before commencing to deport him.

The court in that case said that the INS was barred from rescinding his adjustment by the five-year statute of limitations.

The DHS argued that the Bamidele case was not applicable because the law was amended by the Illegal Immigration Reform and Immigrant Responsibility Act (IIRAIRA) which took effect in April 1997 after the Bamidele case was decided. The DHS said that the five (5) year limitation no longer applied to removal proceedings.

The BIA in its decision stated that when an adjustment of status is granted by mistake, the DHS may either file rescission proceedings if it becomes aware of such mistake within five years or start deportation proceedings anytime, even after five years.

The Court, however, disagreed with the DHS and the BIA and ruled that the statutory revision did not undercut its holding in Bamidele. The five-year limitation applied both to rescission and deportation, the court concluded.



"
 
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That 5-year limitation is only on the rescission process, not revocation in general. Rescission is a relatively simple administrative process whereby they can take away your permanent resident status with very limited court intervention.

But after the 5 years, a judicial revocation for fraud can still be done. It's just that it's more difficult and has to be done entirely in court.

In addition, those rulings are about rescinding the GC based on evidence they already had when they granted the GC. So that does not apply to new evidence found afterwards.
 
smali said:
well i did not had any relationship to my second spouse when i married my first wife. rather i did not know this family until after two years of my divorce. does that make me free and clear
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So the first time you met your current wife was after divorcing your first wife? Then you should be fine. The problem is that it may take a long time while they investigate your situation.
 
Triple Citizen said:
That still does not rule out the possibility that the adjudicator is convinced that you married your first spouse just to get a GC.
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it has nothing to do with if io is convinced or not, it has to do with hard evidence, ina and precedent case law. otherwise, it can not be held in a court of law otherwise. there is no such evidence available on this globe, i do not know about mars or beyond though.
 
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Thanks triple citizen. the only reason for tough questioning was remarriage and coo being pakistan, which did come up in interview.

io has asked for original natz cert and original lease. i did not have originals but uncertified copies which i did handed over to her. do you suggest i shall be proactive and mail out certified copies before 30 days are up.
 
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